Intermediary Liability

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Whether and when communications platforms like Google, Twitter and Facebook are liable for their users’ online activities is one of the key factors that affects innovation and free speech. Most creative expression today takes place over communications networks owned by private companies. Governments around the world increasingly press intermediaries to block their users’ undesirable online content in order to suppress dissent, hate speech, privacy violations and the like. One form of pressure is to make communications intermediaries legally responsible for what their users do and say. Liability regimes that put platform companies at legal risk for users’ online activity are a form of censorship-by-proxy, and thereby imperil both free expression and innovation, even as governments seek to resolve very real policy problems.

In the United States, the core doctrines of section 230 of the Communications Decency Act and section 512 of the Digital Millennium Copyright Act have allowed these online intermediary platforms user generated content to flourish. But, immunities and safe harbors for intermediaries are under threat in the U.S. and globally as governments seek to deputize intermediaries to assist in law enforcement.

To contribute to this important policy debate, CIS studies international approaches to intermediary obligations concerning users’ copyright infringement, defamation, hate speech or other vicarious liabilities, immunities, or safe harbors; publishes a repository of information on international liability regimes and works with global platforms and free expression groups to advocate for policies that will protect innovation, freedom of expression, privacy and other user rights.

Joan Barata is an international expert in freedom of expression, freedom of information and media regulation. As a scholar, he has spoken and done extensive research in these areas, working and collaborating with various universities and academic centers, from Asia to Africa and America, authoring papers, articles and books, and addressing specialized Parliament committees.

Annemarie Bridy is a Professor of Law at the University of Idaho. She is also an Affiliated Fellow at the Yale Law School Information Society Project and a former Visiting Associate Research Scholar at the Princeton University Center for Information Technology Policy. Professor Bridy specializes in intellectual property and information law, with specific attention to the impact of new technologies on existing legal frameworks for the protection of intellectual property and the enforcement of intellectual property rights.

Giancarlo F. Frosio is a Non-Residential Fellow at the Center for Internet and Society at Stanford Law School. Previously he was the Intermediary Liabilty fellow with Stanford CIS. He is also a Senior Lecturer and Researcher at the Center for International Intellectual Property Studies (CEIPI) at Strasbourg University. Giancarlo also serves as Affiliate Faculty at Harvard CopyrightX and Faculty Associate of the Nexa Research Center for Internet and Society in Turin.

The law and legal professional ethics require of counsel a duty of candor in the practice of law. This includes a duty to not knowingly make false statements of fact, and to not offer evidence the lawyer knows to be false. These principles are considered essential to maintaining both substantive fairness for participants in the process, and trust in the integrity of the process for those outside of it.

Users of information tools in public contexts are not, of course, subject to the same duties. And publication of false information is generally protected by the First Amendment, unless it falls into one of the defined exceptions. I’m doubtful a law against publication of false information would be sustained.

It is, however, perfectly acceptable for most information technology platforms to adopt such a policy and seek to enforce it as best they can. That is, platforms could create and enforce rules against publication of information known to be false. A recent publication from the NYU Stern Center for Business and Human Rights contends platforms should do so. This post concurs: subject to some limitations, private platforms can and should take a position that use of their services to intentionally or carelessly spread false information violates terms of service.

In the name of “brand safety,” advertisers these days are working hard to better control where their ads appear online. Programmatic advertising with real-time bidding automates the process of online ad buying and ad placement to such an extent that the entire process takes place in the time it takes a web page to load. The process is highly efficient, but a significant downside is that ads sometimes appear alongside controversial content with which an advertiser would rather not be associated. Online pornography is the classic example, but other strains of extreme content—e.g., hate speech, conspiracism, and incitement-to-terrorism—have more recently come into focus for advertisers as threats to brand reputation.

The security of our news and media information systems matters as much as the security of personal and commercial information systems. "Information warfare" shows that harms can arise even when there is no unauthorized access, when tools are used as intended, and when there’s no compromise of user privacy settings. In both cases of cybersecurity and news/media security, the threats are asymmetric, the tools readily available, usable for many purposes, and threats are easily disguised as benign.

Policymakers increasingly ask Internet platforms like Facebook to “take responsibility” for material posted by their users. Mark Zuckerberg and other tech leaders seem willing to do so. That is in part a good development. Platforms are uniquely positioned to reduce harmful content online. But deputizing them to police users’ speech in the modern public square can also have serious unintended consequences. This piece reviews existing laws and current pressures to expand intermediaries’ liability for user-generated content.

On Friday, the European Union’s GDPR (General Data Protection Regulation) privacy regulation goes into effect. Manyarticles have been written complaining that the regulation is ambiguous, confusing and difficult to implement.

"Frosio states, "By their nature, Internet services are inherently global. But Internet companies face a real challenge understanding how those global regimes might regulate the services they offer to the public. This uncertainty can hurt users by potentially scaring companies away from providing innovative new services in certain markets. Additionally, companies may unnecessarily limit what users can do online, or engage in censorship-by-proxy to avoid uncertain retribution under unfamiliar laws.""

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The extent to which internet intermediaries such as Facebook and Google should be liable for unlawful content on the internet is currently facing a great deal of scrutiny in Europe. Like in the US, internet intermediaries in Europe are expected to assist in the prevention of copyright infringement. However, they do not have the wide protection against defamation and privacy claims provided by section 230 of the Communications Decency Act 1996 in the US. Over the last few years, they have therefore found themselves being named in lawsuits in respect of user-generated content.

The extent to which internet intermediaries such as Facebook and Google should be liable for unlawful content on the internet is currently facing a great deal of scrutiny in Europe. Like in the US, internet intermediaries in Europe are expected to assist in the prevention of copyright infringement. However, they do not have the wide protection against defamation and privacy claims provided by section 230 of the Communications Decency Act 1996 in the US. Over the last few years, they have therefore found themselves being named in lawsuits in respect of user-generated content.